I also asked my friend Bob Clarida (author of the COPYRIGHT LAW DESKBOOK) what he thought of the decision. His characteristically interesting response:
"Two stray thoughts I had:
(1) By remanding on the five
works with fewer visible changes, has the Second Circuit now closed the door (at least
a little) on the argument, seemingly well-settled since Bill Graham, that
transformativeness is about context and purpose, not visible changes? By the ruling's logic,
it could be argued that Prince's Marlboro Man pieces, or Sherrie Levine or Barbara Kruger,
are not transformative. So by dwelling on the surface of the works the court
may be turning back the clock a little.
"(2) The new standard seems much more
like it invites a jury question. If the standard is at least somewhat tied to
artist intent, you can have a case where the parties clearly state on the
record what their intentions and meanings were, and the court SHOULD be able to
see the disparity and say it's fair use. There's no disputed fact issue. But if the
standard is to compare the 'aesthetic' of two works, looking
only at 'results,' the court has nothing to go on but the physical
changes.
"So overall, I think the decision sort of de-conceptualizes the art and
treats it as merely a bunch of marks on a surface -- very old-timey and
reductionist. If not a jury, you could program a scanner to do it: 88%
optically similar is infringement, 38% optically similar is fair use. The five
sent back for remand were in the middle. Maybe the court's implicit
assumption is that visual differences are key here because both works were
'fine art,' so any asserted difference in purpose is not enough to
warrant a fair use finding -- certainly the purpose, context and intent of
the five remanded pieces are not much different -- if at all -- from the pieces that
qualified for fair use; the only difference is the way they look."
